1. The appellant, Abdulrahman Rashid Musa was convicted and sentenced to serve 30 years’ imprisonment for the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars of the charge were that on 6/5/2019 at Majengo area in Mvita Sub-County within Mombasa County jointly with another before court, while armed with offensive weapons namely pangas robbed Catherine Wanjiru Mwangi of cash KShs 22,000/=, one handbag valued at KShs 20,000/=, one mobile phone make Samsung GT valued at KShs 15,000/=, one power bank valued at KShs 7,000/=, national identity card, three bank ATM cards and NHIF card all valued at KShs 67,000/= and immediately before the time of such robbery used actual violence upon the said Catherine Wanjiru Mwangi.
2. The appellant was dissatisfied with the trial court’s decision, and he has moved to this court on appeal based on the grounds outlined in his amended grounds of appeal dated 24/6/2024 which are as follows:
a. The Hon. trial magistrate erred in matters of law and fact in that there was no prima facie case under section 296(2) of the Penal Code to found a conviction, a breach of articles 25(c), 27(1), 47(1), 50(1), 157(11) and 159(2)(c) of the Constitution of Kenya, section 107 of the Evidence Act and sections 216 and 329 of the CPC.
b. The Hon. trial magistrate erred in matters of law and fact as the appellant’s time of six years spent in remand custody was not counted as part of his sentence as is provided under section 333(2) of the CPC.
c. The Hon. trial magistrate erred in law and fact as the appellant’s cogent defence and mitigation were not given due weight and consideration for a fair trial under articles 47 and 50 of the constitution.
d. That the 30 years sentence awarded by the learned trial magistrate is tantamount to a life sentence, harsh and did not factor the particular circumstances of the case.
e. That the modern jurisprudence has shown that the courts exercising discretion in awarding sentences in line with circumstances presenting.
3. The appeal was heard by way of written submissions filed by the appellant and learned counsel for the respondent.
4. The appellant submits that the prosecution failed to discharge its legal burden of proof to the required standard due to insufficient and contradictory evidence.
5. Learned counsel for the prosecution submits that the prosecution evidence was not challenged by the appellant either by way of cross-examination or his defence. That the defence did not dislodge the prosecution case.
6. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
7. This position is recounted in several other decisions for instance in Njoroge v Republic (1987) KLR 19.
8. The prosecution presented 4 witnesses before the trial court in support of its case. PW 1, Catherine Wanjiru Mwangi was the complainant; PW 2, PC Ashford Kinyua of Makupa police station was the investigating officer. PW 3, Kasim Abdall Ilala was a “tuk tuk” driver who had ferried the complainant and her boyfriend in his “tuk tuk” when the incident happened. PW 4, PC Mike Njeru, was the arresting officer.
9. In summary, the prosecution’s case was that on 6/5/2019 at around 2.00 p.m. the complainant together with her fiance boarded a “tuk tuk” driven by PW 3 to go to Zuku offices in town. On their way at around Sakina mosque, a group of young men who appeared to be in a riot occupied the road. PW 3 pulled the “tuk tuk” off the road. PW 1 spotted a Zuku office around Sakina mosque and she decided to alight there instead of going up to the town offices. Her fiancé alighted first. She took out her purse and paid PW 3 KShs 200/=. While waiting for change, the group of young men advanced towards her while armed with crude weapons such as panga, metal bar and knife. The appellant confronted her and said he wanted “kuma” repeating it three times. He then went for the bag which was open with contents visible. A struggle ensued between the appellant and the complainant as she resisted to retain the bag and the appellant pulled to take it away. He shouted to the other young men that the complainant had refused to release her bag. Another person shouted asking what was happening and PW 1 saw someone place a knife on his throat. At that moment, the appellant managed to snatch the bag from the complainant and ran away with it. The bag had in it several personal items being a mobile phone make Samsung Grand Neo, power bank, cash, national identification card (ID), ATM and NHIF cards. She valued all the items at KShs 67,000/=.
10. According to PW 3, the driver of the “tuk tuk” had run away. The complainant said her fiancé was also threatened and was shocked.
11. The complainant reported the matter at Makupa police station afterwards.
12. PW 3 gave evidence supporting that of the complainant. He said that some of the members of the mob went and surrounded him and ransacked his pockets as others were holding the complainant’s fiancé. One of them had a “rungu” and threatened to hit the complainant’s fiancé. PW 3 got out of the “tuk tuk” and saw the appellant struggling with the complainant to take away her bag. The Zuku offices security guards offered her security. PW 3 took change to the complainant but she declined to take it believing that he was one of the members of the mob since he had diverted from the main road to use that route as they headed to town. However, according to PW 3, he diverted because there was traffic jam on the main road at Khoja flats.
13. Three days afterwards, PW 3 spotted the appellant at Lebanon stage touting for passengers. He went to the location he had picked the complainant, described her to a security guard and she was called. PW 3 told her that he had spotted the person who had robbed her items. They went to Makupa police station, got one police officer and went to Lebanon stage but did not get the appellant. He spotted him again after one week at the same stage. He had the complainant’s number. He called the complainant and alerted her. The complainant got PW 4 and other police officers from Makupa police station and proceeded with them to Lebanon stage where they found the appellant and he was arrested.
14. In cross-examination, PW 3 said that he was able to identify the appellant because he was the leader of the mob of young men that had occupied the road and confronted them.
15. PW 4 recorded statements from the witnesses and had the appellant charged in court with the offence.
16. The appellant made an unsworn statement in defence and did not call a witness. He denied that he committed the offence. He said that he was arrested from Lebanon stage where he works as a conductor, together with three of his colleagues by people in two “tuk tuks” whom he thought were customers but turned out to be police officers. They took them to Makupa police station. The complainant went to the police station and pointed to him saying he was the one. She asked him to identify his accomplices and he told her he did not know what she was talking about. He was subsequently charged with the offence.
17. I have considered and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submissions filed by the appellant and the respondent. The issue for determination by this court is whether the trial court was correct in its finding that the prosecution proved its case against the appellant on the charge of robbery with violence contrary to section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt.
18. In order to prove the offence of robbery with violence the prosecution was required to prove any of the following circumstances as enunciated by the Court of Appeal in the case of Johana Ndungu vs. Republic [1996] eKLR thus:
“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of the penal code one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved will constitute the offence under the subsection:
i. If the offender is armed with any dangerous or offensive weapon or instrument; or
ii. If he is in company with one or more other person or persons; or
iii. If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.”
19. The learned trial magistrate found in his judgment that two of the ingredients of the offence of robbery with violence had been established. He did not however indicate which of the three elements had been established by the prosecution. He did not believe the evidence tendered by the appellant. He was satisfied that the case had been proved beyond a reasonable doubt and convicted the appellant.
20. From the evidence above, I find that most of the submissions herein by the appellant are borne out of a lack of proper appreciation of the constituent elements of the offence of robbery with violence, which are set out above.
21. He submits that snatching is pure theft without an aspect of violence and that from the prosecution evidence, the complainant’s bag was snatched. According to him, in that case, there was no robbery with violence committed.
22. A proper appreciation of the elements of the offence would be that all the circumstances surrounding the snatching have to be considered to determine whether the ingredients of robbery with violence were proved. In this case, there is evidence that there was more than one person involved in robbing the people on the road at the time, among them the complainant. Some of the people were armed with weapons and one threatened another member of the public with a knife on the neck. Another one had a “rungu” and threatened to hit the complainant’s fiancé. They appeared to be acting in concert with one another as they harassed the members of the public. In that case, the elements of robbery with violence that were clearly established were that there was more than one person involved in the robbery and some of them were armed with offensive weapons identified as knife and “rungu.”
23. The appellant also submits that the failure to make any recoveries of the complainant’s property and especially the mobile phone which could easily be tracked with modern technology makes the prosecution’s case not proved. However, that is not the position under the law as a recovery of the stolen property is not an element requiring proof of the offence but would strengthen the prosecution’s case especially where the culprit was found with the same.
24. The appellant also submitted that there was no proper identification and the failure to subject him to an identification parade meant that he was not identified as the culprit. It is true that where there is any doubt at all as to the identification of the suspect, an identification parade should be conducted in order to avoid any case of mistaken identity. However, an identification parade is just one of the modes of identifying a witness. It is not a must that the same be done for every case of identification especially where the circumstances were conducive for a proper identification. In this case, the evidence relied upon was that that the offence was committed in broad daylight and that there was more than one identifying witness.
25. I am therefore satisfied as the learned trial magistrate was that the evidence of identification did not require an identification parade.
26. The appellant submitted that the particulars of the charge indicated that he was with another co-accused not before court. The particulars of the charge, in fact, indicated that he committed the offence, “jointly with another before court…” and not as submitted by the appellant. All the same, I note that during the proceedings, there was no time the prosecution ever sought to consolidate the case facing the appellant with another nor did they ever mention the presence of the other person in any other court case. This is in spite of the fact that the appellant was arrested almost immediately. It is inconceivable that if there was another case it would have been concluded so soon that it was not necessary to consolidate the two. it is therefore apparent that the appellant was not charged jointly with another before court.
27. However, I do not think that this discrepancy occasioned a failure of justice because neither the evidence of the investigating officer nor that of the complainant and PW 3 showed that any other person was arrested and charged for the same offence. The only person whom the complainant and PW 3 allege to have identified and was arrested was the appellant.
28. I also noted that the appellant tendered his defence three times. The first time, on 26/8/2020 he had started giving sworn evidence but, in the midst, he said that he was unprepared and asked for an adjournment. He was stood down and the defence hearing adjourned. He was given several adjournments thereafter when he said he was not prepared or was unwell and was unable to proceed. The second time, on 13/7/2021, almost one year after, he made an unsworn statement and completed his testimony. He then asked for adjournment severally to call his mother as his witness, but that was never to be. Yet again on 25/8/2022, exactly two years after his initial evidence in defence he made another unsworn statement before the same magistrate. Perhaps due to the long-time lapse, it must have escaped the learned magistrate that the appellant had already testified. Even after that, the appellant continued seeking for adjournment on grounds that he intended to bring his mother to testify but she never turned up. Another magistrate took over the matter on 2/5/2023 and after complying with the provisions of section 200(2) of the Criminal Procedure Code and the appellant saying that the case could proceed from where it had reached, the magistrate yet again granted the appellant one more chance to make his witness available but in vain. The appellant closed his case. The new magistrate wrote and delivered the judgment on the evidence taken by his predecessor.
29. I have considered the effect of testifying two times and I find that no prejudice was occasioned to the appellant because he had not completed giving his evidence-in-chief under oath and when he came the second time, he opted to make an unsworn statement.
30. Learned counsel for the prosecution submitted that the appellant chose to give unsworn statement so as to avoid cross-examination. I find that charge to be derisive because, the law, section 211 CPC, gives an accused person the right to choose to give sworn evidence or to make an unsworn statement. After all, it is upon the prosecution to prove its case beyond a reasonable doubt and not the accused person to be subjected to cross-examination so as to assist the prosecution to prove its case. When an accused person chooses to exercise a right granted by statute, it cannot be the case that he is deliberating avoiding to take one route rather than the other due to some consequences not provided for under the law. He is simply taking one of the options available to him. It is true that an unsworn testimony may be weak and not match up to the sworn evidence tendered by prosecution witnesses. But, how weak or strong, that is for the court to decide. Whether through evidence on oath or unsworn statement, what the accused needs to do is to give a story that can create a doubt in the mind of the court. It need not be convincing to the court but only plausible, that is reasonable or probable. That is sufficient. It matters not that it be given through sworn evidence or an unsworn statement.
31. The learned prosecution counsel also seems not to have seen the amended grounds of appeal filed by the appellant because other submissions he made are based on the initial grounds of appeal which had some errors as they were referring to a case of defilement and not robbery with violence.
32. In supporting the conviction, the learned prosecution counsel submitted that the appellant’s defence did not dislodge the case for the prosecution.
33. In order to prove that violence had been used, learned counsel for the respondent submitted that when the complainant tried to resist her handbag being snatched, a knife was placed on her throat. However, that is not true. Neither the complainant nor PW 3 who were present said that the complainant was threatened with a knife. Only the complainant mentioned that in the course of her struggling with the assailant, a knife was placed on the neck of another unknown person and that was the point the appellant took away her bag.
34. Stealing is an essential ingredient of the offence of robbery with violence, as provided for under section 295 of the Penal code. In the present case, the evidence, as analyzed above, showed that there was a theft of the complainant’s handbag which contained money and various personal items.
35. The prosecution’s case turned on the positive identification of the robbers by the complainant and PW 3.
36. There was evidence that there was a mob of young people who had occupied the road. Some of them confronted PW 3 and ransacked his pockets, others went for the complainant’s fiancé and the appellant went for the complainant. There is no indication that the complainant was confronted by more than one person from the group. The evidence of the complainant and PW 3 was that the complainant was confronted by one person whom each identified as the appellant. He was in a mob but PW 3 said that he appeared to be the leader and therefore it was easy to point him out. PW 3 was the driver of the “tuk tuk” and so he could clearly see the people as they approached ahead of them and see who was leading. Indeed, the complainant said that he called the others out telling them that the complainant was resisting her bag being taken away.
37. The incident happened in broad daylight and the appellant was identified by two witnesses, PW 1 and PW 3. it took a short time and there were many people but the evidence was that the complainant had a one-on-one encounter with the appellant and no other of the others as they seemed to be engaged with other members of the public among them PW 3 and the complainant’s fiance.
38. The appellant confronted PW 1 face to face and derogatively told her that he wanted “kuma” meaning vagina, three times. Those are words the complainant would not have failed to mark whoever told her under the circumstances. There is no indication that there was anything else distracting her from seeing the appellant. They engaged in a struggle as he wrestled her bag from her and the appellant called out to his colleagues when he realized that the resistance put up by the complainant was too much. The complainant had him in sight all the time. She was only destructed when she saw another of the crowd members hold a knife to another victim’s neck.
39. Identification of the appellant by PW 3 was consistent with that of PW 1 that he saw the appellant struggling with the complainant over her bag. By this time, PW 3 had stepped out of his “tuk tuk” and was able to clearly see what was happening.
40. I therefore find that the evidence tendered was not evidence of a single identifying witness under difficult circumstances as was submitted by the appellant. There were two witnesses who identified him in broad daylight. PW 3 came through as a honest and truthful witness and I have no reason to doubt what he said. He appears to have been touched by the complainant thinking that he had a plot to sell them out to the riotous mob and that was why he took the Sakina mosque route. In order to demonstrate his innocence in the matter, the moment he spotted the complainant’s assailant, he made effort to trace her and inform her in spite of the complainant having gone away with negative thoughts about him.
41. The appellant did not mention anything in his defence about his whereabouts on 6/5/2019, the day of the incident. The evidence of the witnesses that he was at the scene and robbed the complainant is therefore unchallenged.
42. I find that there was no possibility of honest but mistaken identity of the appellant as one of the robbers as submitted by the appellant.
43. I am satisfied of the conviction of the appellant by the trial court was made on sound and cogent evidence and the same is affirmed.
44. On sentence the appellant urged the court to set aside the sentence as being harsh, disproportionate and unfair.
45. The appellant was sentenced to 30 years imprisonment. The Court of Appeal has determined in various decisions that such a period would amount to a determinate period of life imprisonment (see the cases of Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR).
46. The High Court at Vihiga has recently held in the case of Constitutional Petition No. E002 consolidated with Petition No. E003 of 2024 Stephen Njau Mbugua & Others vs. The Hon. AG & Another, February, 2025 that persons who had been convicted for robbery with violence and attempted robbery with violence and whose sentences were commuted to life imprisonment were entitled to the benefit of enjoying reduction of their sentences by considering Section 333 (2) of the Criminal Procedure Code where it was not considered by the trial court. I am persuaded to follow this decision herein on the issue of sentencing.
47. I have considered the mitigating and aggravating circumstances of the offence. The complainant was not personally visited with violence even though she lost her property. The appellant terms that property to be of low value. The appellant was not armed with any weapon. It would appear to me that there was a mob taking advantage of a demonstration and some of the members, among them the appellant took advantage to rob members of the public. That was despicable and must be condemned. The appellant appears to be a young man who was driven by the excitement of the moment, being in a demonstration, to engage in an act whose consequences he may not have appreciated but which all the same amounted to commission of a very serious offence of robbery with violence.
48. In this case, I am satisfied that the circumstances call for a reduction of the sentence imposed upon the appellant. Consequently, the 30 years imprisonment is set aside and substituted with a sentence of 10 years imprisonment to be served from the date of arrest on 21/5/2019 in line with section 333(2) CPC.
49. Otherwise, the appeal on conviction is dismissed.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court on the virtual platform, Teams this 19th day of March 2025 in the presence of:
The appellant in person from Naivasha prison.
Ms Vallerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia, court assistant.
2. The appellant was dissatisfied with the trial court’s decision, and he has moved to this court on appeal based on the grounds outlined in his amended grounds of appeal dated 24/6/2024 which are as follows:
a. The Hon. trial magistrate erred in matters of law and fact in that there was no prima facie case under section 296(2) of the Penal Code to found a conviction, a breach of articles 25(c), 27(1), 47(1), 50(1), 157(11) and 159(2)(c) of the Constitution of Kenya, section 107 of the Evidence Act and sections 216 and 329 of the CPC.
b. The Hon. trial magistrate erred in matters of law and fact as the appellant’s time of six years spent in remand custody was not counted as part of his sentence as is provided under section 333(2) of the CPC.
c. The Hon. trial magistrate erred in law and fact as the appellant’s cogent defence and mitigation were not given due weight and consideration for a fair trial under articles 47 and 50 of the constitution.
d. That the 30 years sentence awarded by the learned trial magistrate is tantamount to a life sentence, harsh and did not factor the particular circumstances of the case.
e. That the modern jurisprudence has shown that the courts exercising discretion in awarding sentences in line with circumstances presenting.
3. The appeal was heard by way of written submissions filed by the appellant and learned counsel for the respondent.
4. The appellant submits that the prosecution failed to discharge its legal burden of proof to the required standard due to insufficient and contradictory evidence.
5. Learned counsel for the prosecution submits that the prosecution evidence was not challenged by the appellant either by way of cross-examination or his defence. That the defence did not dislodge the prosecution case.
6. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
7. This position is recounted in several other decisions for instance in Njoroge v Republic (1987) KLR 19.
8. The prosecution presented 4 witnesses before the trial court in support of its case. PW 1, Catherine Wanjiru Mwangi was the complainant; PW 2, PC Ashford Kinyua of Makupa police station was the investigating officer. PW 3, Kasim Abdall Ilala was a “tuk tuk” driver who had ferried the complainant and her boyfriend in his “tuk tuk” when the incident happened. PW 4, PC Mike Njeru, was the arresting officer.
9. In summary, the prosecution’s case was that on 6/5/2019 at around 2.00 p.m. the complainant together with her fiance boarded a “tuk tuk” driven by PW 3 to go to Zuku offices in town. On their way at around Sakina mosque, a group of young men who appeared to be in a riot occupied the road. PW 3 pulled the “tuk tuk” off the road. PW 1 spotted a Zuku office around Sakina mosque and she decided to alight there instead of going up to the town offices. Her fiancé alighted first. She took out her purse and paid PW 3 KShs 200/=. While waiting for change, the group of young men advanced towards her while armed with crude weapons such as panga, metal bar and knife. The appellant confronted her and said he wanted “kuma” repeating it three times. He then went for the bag which was open with contents visible. A struggle ensued between the appellant and the complainant as she resisted to retain the bag and the appellant pulled to take it away. He shouted to the other young men that the complainant had refused to release her bag. Another person shouted asking what was happening and PW 1 saw someone place a knife on his throat. At that moment, the appellant managed to snatch the bag from the complainant and ran away with it. The bag had in it several personal items being a mobile phone make Samsung Grand Neo, power bank, cash, national identification card (ID), ATM and NHIF cards. She valued all the items at KShs 67,000/=.
10. According to PW 3, the driver of the “tuk tuk” had run away. The complainant said her fiancé was also threatened and was shocked.
11. The complainant reported the matter at Makupa police station afterwards.
12. PW 3 gave evidence supporting that of the complainant. He said that some of the members of the mob went and surrounded him and ransacked his pockets as others were holding the complainant’s fiancé. One of them had a “rungu” and threatened to hit the complainant’s fiancé. PW 3 got out of the “tuk tuk” and saw the appellant struggling with the complainant to take away her bag. The Zuku offices security guards offered her security. PW 3 took change to the complainant but she declined to take it believing that he was one of the members of the mob since he had diverted from the main road to use that route as they headed to town. However, according to PW 3, he diverted because there was traffic jam on the main road at Khoja flats.
13. Three days afterwards, PW 3 spotted the appellant at Lebanon stage touting for passengers. He went to the location he had picked the complainant, described her to a security guard and she was called. PW 3 told her that he had spotted the person who had robbed her items. They went to Makupa police station, got one police officer and went to Lebanon stage but did not get the appellant. He spotted him again after one week at the same stage. He had the complainant’s number. He called the complainant and alerted her. The complainant got PW 4 and other police officers from Makupa police station and proceeded with them to Lebanon stage where they found the appellant and he was arrested.
14. In cross-examination, PW 3 said that he was able to identify the appellant because he was the leader of the mob of young men that had occupied the road and confronted them.
15. PW 4 recorded statements from the witnesses and had the appellant charged in court with the offence.
16. The appellant made an unsworn statement in defence and did not call a witness. He denied that he committed the offence. He said that he was arrested from Lebanon stage where he works as a conductor, together with three of his colleagues by people in two “tuk tuks” whom he thought were customers but turned out to be police officers. They took them to Makupa police station. The complainant went to the police station and pointed to him saying he was the one. She asked him to identify his accomplices and he told her he did not know what she was talking about. He was subsequently charged with the offence.
17. I have considered and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submissions filed by the appellant and the respondent. The issue for determination by this court is whether the trial court was correct in its finding that the prosecution proved its case against the appellant on the charge of robbery with violence contrary to section 296(2) of the Penal Code to the required standard of proof beyond any reasonable doubt.
18. In order to prove the offence of robbery with violence the prosecution was required to prove any of the following circumstances as enunciated by the Court of Appeal in the case of Johana Ndungu vs. Republic [1996] eKLR thus:
“In order to appreciate properly as to what acts constitute an offence under Section 296 (2) of the penal code one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved will constitute the offence under the subsection:
i. If the offender is armed with any dangerous or offensive weapon or instrument; or
ii. If he is in company with one or more other person or persons; or
iii. If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.”
19. The learned trial magistrate found in his judgment that two of the ingredients of the offence of robbery with violence had been established. He did not however indicate which of the three elements had been established by the prosecution. He did not believe the evidence tendered by the appellant. He was satisfied that the case had been proved beyond a reasonable doubt and convicted the appellant.
20. From the evidence above, I find that most of the submissions herein by the appellant are borne out of a lack of proper appreciation of the constituent elements of the offence of robbery with violence, which are set out above.
21. He submits that snatching is pure theft without an aspect of violence and that from the prosecution evidence, the complainant’s bag was snatched. According to him, in that case, there was no robbery with violence committed.
22. A proper appreciation of the elements of the offence would be that all the circumstances surrounding the snatching have to be considered to determine whether the ingredients of robbery with violence were proved. In this case, there is evidence that there was more than one person involved in robbing the people on the road at the time, among them the complainant. Some of the people were armed with weapons and one threatened another member of the public with a knife on the neck. Another one had a “rungu” and threatened to hit the complainant’s fiancé. They appeared to be acting in concert with one another as they harassed the members of the public. In that case, the elements of robbery with violence that were clearly established were that there was more than one person involved in the robbery and some of them were armed with offensive weapons identified as knife and “rungu.”
23. The appellant also submits that the failure to make any recoveries of the complainant’s property and especially the mobile phone which could easily be tracked with modern technology makes the prosecution’s case not proved. However, that is not the position under the law as a recovery of the stolen property is not an element requiring proof of the offence but would strengthen the prosecution’s case especially where the culprit was found with the same.
24. The appellant also submitted that there was no proper identification and the failure to subject him to an identification parade meant that he was not identified as the culprit. It is true that where there is any doubt at all as to the identification of the suspect, an identification parade should be conducted in order to avoid any case of mistaken identity. However, an identification parade is just one of the modes of identifying a witness. It is not a must that the same be done for every case of identification especially where the circumstances were conducive for a proper identification. In this case, the evidence relied upon was that that the offence was committed in broad daylight and that there was more than one identifying witness.
25. I am therefore satisfied as the learned trial magistrate was that the evidence of identification did not require an identification parade.
26. The appellant submitted that the particulars of the charge indicated that he was with another co-accused not before court. The particulars of the charge, in fact, indicated that he committed the offence, “jointly with another before court…” and not as submitted by the appellant. All the same, I note that during the proceedings, there was no time the prosecution ever sought to consolidate the case facing the appellant with another nor did they ever mention the presence of the other person in any other court case. This is in spite of the fact that the appellant was arrested almost immediately. It is inconceivable that if there was another case it would have been concluded so soon that it was not necessary to consolidate the two. it is therefore apparent that the appellant was not charged jointly with another before court.
27. However, I do not think that this discrepancy occasioned a failure of justice because neither the evidence of the investigating officer nor that of the complainant and PW 3 showed that any other person was arrested and charged for the same offence. The only person whom the complainant and PW 3 allege to have identified and was arrested was the appellant.
28. I also noted that the appellant tendered his defence three times. The first time, on 26/8/2020 he had started giving sworn evidence but, in the midst, he said that he was unprepared and asked for an adjournment. He was stood down and the defence hearing adjourned. He was given several adjournments thereafter when he said he was not prepared or was unwell and was unable to proceed. The second time, on 13/7/2021, almost one year after, he made an unsworn statement and completed his testimony. He then asked for adjournment severally to call his mother as his witness, but that was never to be. Yet again on 25/8/2022, exactly two years after his initial evidence in defence he made another unsworn statement before the same magistrate. Perhaps due to the long-time lapse, it must have escaped the learned magistrate that the appellant had already testified. Even after that, the appellant continued seeking for adjournment on grounds that he intended to bring his mother to testify but she never turned up. Another magistrate took over the matter on 2/5/2023 and after complying with the provisions of section 200(2) of the Criminal Procedure Code and the appellant saying that the case could proceed from where it had reached, the magistrate yet again granted the appellant one more chance to make his witness available but in vain. The appellant closed his case. The new magistrate wrote and delivered the judgment on the evidence taken by his predecessor.
29. I have considered the effect of testifying two times and I find that no prejudice was occasioned to the appellant because he had not completed giving his evidence-in-chief under oath and when he came the second time, he opted to make an unsworn statement.
30. Learned counsel for the prosecution submitted that the appellant chose to give unsworn statement so as to avoid cross-examination. I find that charge to be derisive because, the law, section 211 CPC, gives an accused person the right to choose to give sworn evidence or to make an unsworn statement. After all, it is upon the prosecution to prove its case beyond a reasonable doubt and not the accused person to be subjected to cross-examination so as to assist the prosecution to prove its case. When an accused person chooses to exercise a right granted by statute, it cannot be the case that he is deliberating avoiding to take one route rather than the other due to some consequences not provided for under the law. He is simply taking one of the options available to him. It is true that an unsworn testimony may be weak and not match up to the sworn evidence tendered by prosecution witnesses. But, how weak or strong, that is for the court to decide. Whether through evidence on oath or unsworn statement, what the accused needs to do is to give a story that can create a doubt in the mind of the court. It need not be convincing to the court but only plausible, that is reasonable or probable. That is sufficient. It matters not that it be given through sworn evidence or an unsworn statement.
31. The learned prosecution counsel also seems not to have seen the amended grounds of appeal filed by the appellant because other submissions he made are based on the initial grounds of appeal which had some errors as they were referring to a case of defilement and not robbery with violence.
32. In supporting the conviction, the learned prosecution counsel submitted that the appellant’s defence did not dislodge the case for the prosecution.
33. In order to prove that violence had been used, learned counsel for the respondent submitted that when the complainant tried to resist her handbag being snatched, a knife was placed on her throat. However, that is not true. Neither the complainant nor PW 3 who were present said that the complainant was threatened with a knife. Only the complainant mentioned that in the course of her struggling with the assailant, a knife was placed on the neck of another unknown person and that was the point the appellant took away her bag.
34. Stealing is an essential ingredient of the offence of robbery with violence, as provided for under section 295 of the Penal code. In the present case, the evidence, as analyzed above, showed that there was a theft of the complainant’s handbag which contained money and various personal items.
35. The prosecution’s case turned on the positive identification of the robbers by the complainant and PW 3.
36. There was evidence that there was a mob of young people who had occupied the road. Some of them confronted PW 3 and ransacked his pockets, others went for the complainant’s fiancé and the appellant went for the complainant. There is no indication that the complainant was confronted by more than one person from the group. The evidence of the complainant and PW 3 was that the complainant was confronted by one person whom each identified as the appellant. He was in a mob but PW 3 said that he appeared to be the leader and therefore it was easy to point him out. PW 3 was the driver of the “tuk tuk” and so he could clearly see the people as they approached ahead of them and see who was leading. Indeed, the complainant said that he called the others out telling them that the complainant was resisting her bag being taken away.
37. The incident happened in broad daylight and the appellant was identified by two witnesses, PW 1 and PW 3. it took a short time and there were many people but the evidence was that the complainant had a one-on-one encounter with the appellant and no other of the others as they seemed to be engaged with other members of the public among them PW 3 and the complainant’s fiance.
38. The appellant confronted PW 1 face to face and derogatively told her that he wanted “kuma” meaning vagina, three times. Those are words the complainant would not have failed to mark whoever told her under the circumstances. There is no indication that there was anything else distracting her from seeing the appellant. They engaged in a struggle as he wrestled her bag from her and the appellant called out to his colleagues when he realized that the resistance put up by the complainant was too much. The complainant had him in sight all the time. She was only destructed when she saw another of the crowd members hold a knife to another victim’s neck.
39. Identification of the appellant by PW 3 was consistent with that of PW 1 that he saw the appellant struggling with the complainant over her bag. By this time, PW 3 had stepped out of his “tuk tuk” and was able to clearly see what was happening.
40. I therefore find that the evidence tendered was not evidence of a single identifying witness under difficult circumstances as was submitted by the appellant. There were two witnesses who identified him in broad daylight. PW 3 came through as a honest and truthful witness and I have no reason to doubt what he said. He appears to have been touched by the complainant thinking that he had a plot to sell them out to the riotous mob and that was why he took the Sakina mosque route. In order to demonstrate his innocence in the matter, the moment he spotted the complainant’s assailant, he made effort to trace her and inform her in spite of the complainant having gone away with negative thoughts about him.
41. The appellant did not mention anything in his defence about his whereabouts on 6/5/2019, the day of the incident. The evidence of the witnesses that he was at the scene and robbed the complainant is therefore unchallenged.
42. I find that there was no possibility of honest but mistaken identity of the appellant as one of the robbers as submitted by the appellant.
43. I am satisfied of the conviction of the appellant by the trial court was made on sound and cogent evidence and the same is affirmed.
44. On sentence the appellant urged the court to set aside the sentence as being harsh, disproportionate and unfair.
45. The appellant was sentenced to 30 years imprisonment. The Court of Appeal has determined in various decisions that such a period would amount to a determinate period of life imprisonment (see the cases of Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR).
46. The High Court at Vihiga has recently held in the case of Constitutional Petition No. E002 consolidated with Petition No. E003 of 2024 Stephen Njau Mbugua & Others vs. The Hon. AG & Another, February, 2025 that persons who had been convicted for robbery with violence and attempted robbery with violence and whose sentences were commuted to life imprisonment were entitled to the benefit of enjoying reduction of their sentences by considering Section 333 (2) of the Criminal Procedure Code where it was not considered by the trial court. I am persuaded to follow this decision herein on the issue of sentencing.
47. I have considered the mitigating and aggravating circumstances of the offence. The complainant was not personally visited with violence even though she lost her property. The appellant terms that property to be of low value. The appellant was not armed with any weapon. It would appear to me that there was a mob taking advantage of a demonstration and some of the members, among them the appellant took advantage to rob members of the public. That was despicable and must be condemned. The appellant appears to be a young man who was driven by the excitement of the moment, being in a demonstration, to engage in an act whose consequences he may not have appreciated but which all the same amounted to commission of a very serious offence of robbery with violence.
48. In this case, I am satisfied that the circumstances call for a reduction of the sentence imposed upon the appellant. Consequently, the 30 years imprisonment is set aside and substituted with a sentence of 10 years imprisonment to be served from the date of arrest on 21/5/2019 in line with section 333(2) CPC.
49. Otherwise, the appeal on conviction is dismissed.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court on the virtual platform, Teams this 19th day of March 2025 in the presence of:
The appellant in person from Naivasha prison.
Ms Vallerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia, court assistant.